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2007 DIGILAW 301 (DEL)

SIMMI v. STATE

2007-02-13

P.K.BHASIN, R.S.SODHI

body2007
R. S. SODHI, J. ( 1 ) CRIMINAL Appeal No. 969 of 2006 seeks to challenge the judgment dated 21. 09. 2006 of the Additional Sessions Judge, Delhi, in Sessions Case No. 135 of 2005, FIR No. 182 of 2004, registered at Police Station Darya Ganj, under section 302 IPC and further vide order dated 05. 10. 2006 sentenced Simmi, the appellant, to undergo imprisonment for life together with a fine of Rs. 1,000/- (rupees one thousand) under Section 302 IPC. ( 2 ) THE case of the prosecution as narrated by the learned additional Sessions Judge is as follows:- "on 22. 4. 04 on receiving of DD no. 6-A regarding murder of a man, SI Sudhir kumar went to the spot i. e. 39, Netaji Subhash Marg, Darya Ganj, Delhi asd name of the deceased came to be known as Mastana. Investigating Officer (IO) Insp. Raghubir Prasad, SHO Darya Ganj also went to the spot. Complainant Ramesh pawar who was present at the spot produced the accused Simmi before the Insp. Raghubir Prasad IO recorded the statement of complainant and on the basis of his complaint the FIR was registered against the accused U/s 302 IPC on the allegations that on 22. 4. 04 at about 4. 15 am at a vacant Verandah, Near Shiv mandir, 39, NS Marg, Darya Ganj, the accused had murdered the deceased by hitting the head of the deceased with the stones. IO got the dead body and scene of occurrence photographed, prepared the site plan of scene of occurrence and prepared the inquest papers. IO also seized three blood stained stones, blood stained hairs found near the dead body of the deceased, blood stained clothes of the accused, blood stained chappals of the accused and her clothes and other exhibits from the spot and sent the body of the deceased for postmortem. IO arrested the accused and after investigation filed the charge sheet against the accused U/s 302 IPC. " ( 3 ) THE Prosecution in order to establish its case examined as many as 18 witnesses. Of these, PW-1, Virender Singh, states that on the fateful morning at about 4. 30 a. m. he heard a noise and saw people chasing the accused, simmi. She was apprehended as being the person who had murdered Mastana. The police was informed and Simmi was handed over to the Police at the spot. Of these, PW-1, Virender Singh, states that on the fateful morning at about 4. 30 a. m. he heard a noise and saw people chasing the accused, simmi. She was apprehended as being the person who had murdered Mastana. The police was informed and Simmi was handed over to the Police at the spot. He also goes on to state that Simmi was living in Verandah No. 39, Netaji Subhash marg, Darya Ganj, Delhi, for the past two or three years. He deposes that at the time when she was apprehended Simmi claimed that she had killed Mastana since Mastana was attempting to violate her modesty. This witness, however, has not seen Simmi cause any injury to Mastana. ( 4 ) PW-5, is Raj Kumar, who identifies Simmi in Court claims to have known the deceased, Mastana. The witness deposes that he is a labourer and used to sleep in the same verandah. On 22. 04. 2004 he was working as a chowkidaar in Sabzi Mandi. At about 4. 30 a. m. he saw Virender and Ramesh chasing Simmi. On hearing noise he too joined the chase and apprehended Simmi. He thereafter took Simmi to Police Station Darya Ganj and the Police came to the spot thereafter. He deposes to the effect that Mastana was lying in Verandah no. 39, Netaji Subhash Marg, Darya Ganj, Delhi and that there were blood stained stones lying there. The witness claims that he had not seen Simmi cause any injury to Mastana. ( 5 ) PW-7, Ramesh Pawar, deposes to the effect that at around 4. 30 a. m. he was going towards, Delhi Gate on a rickshaw to drop a passenger at Darya ganj. When he was returning from Delhi Gate he saw Simmi causing injuries to the deceased by a stone. He heard a noise "pakro, Pakro" and joined in the chase. He along with the others apprehended Simmi and handed her over to the police. He saw the deceased profusely bleeding from his head. He made a report to the Police, which is Exhibit PW-7/a. He identifies the three stones which were collected from the spot and deposes to the factum of arrest of Simmi. He along with the others apprehended Simmi and handed her over to the police. He saw the deceased profusely bleeding from his head. He made a report to the Police, which is Exhibit PW-7/a. He identifies the three stones which were collected from the spot and deposes to the factum of arrest of Simmi. He also testifies that from the spot some hair of the accused were taken into possession by the Police in his presence vide Memo No. 7/e. In cross-examination, this witness states that he heard sounds of three stones being used by the accused. He heard three sounds and saw the face of the deceased bleeding. He heard the watchman shout "pakro Pakro". He claims that the dead body and the stones were lifted from the spot at the verandah by the Police at around 4. 15 a. m. He also claims that the police had not come to the spot but he along with the others had taken Simmi to the Police Station, where his statement was recorded. He also claims to have signed other papers there. ( 6 ) DR. MUKTA Rani, Junior Specialist, Lal Bahadur Shastri Hospital, delhi, states that she conducted the postmortem examination on the body of the deceased. On 22. 04. 2004, she noted as many as 16 external injuries. The skull was depressed. In her opinion the death was due to craniocereberal damage consequent to blunt object impact. In cross-examination, the Doctor states that all the injuries mentioned by her were possible by a single impact. ( 7 ) THE case of the appellant has been put to PW-16, S. I Sudhir kumar, to the effect that the deceased, in a drunken condition, had tried to outrage the modesty of Simmi and in order to save herself she pushed the deceased implying thereby that the deceased fell on a stone which impact resulted in the injuries noticed by the Doctor. The Trial Court on the basis of the aforesaid evidence, came to the conclusion that PW-7, Ramesh Pawar has seen simmi assault the deceased and thereafter was caught while fleeing from the place of occurrence. The Court came to the conclusion that there was sufficient evidence on record to hold that Simmi had committed the murder of the deceased and, therefore, the Prosecution had discharged its onus beyond reasonable doubt. The Court came to the conclusion that there was sufficient evidence on record to hold that Simmi had committed the murder of the deceased and, therefore, the Prosecution had discharged its onus beyond reasonable doubt. ( 8 ) WE have, with the assistance of learned counsel, carefully examined this case. It is contended before us that the case put up by the appellant was that she being a vagabond used to sleep in Verandah No. 39, Netaji subhash Marg, Darya Ganj, Delhi. On the fateful morning the deceased had tried to outrage her modesty, during which incident Simmi had, in order to protect herself and foil the onslaught of the deceased, pushed him, as a result of which the deceased fell down and struck his head against the stone. In order to establish this case, learned counsel draws our attention to the tuft of hair which was recovered from the spot, close to the hand of the deceased and which hair subsequently, matched with those of the appellant on examination by the cfsl. Learned counsel also draws our attention to the testimony of PW-11, dr. Mukta Rani, where the Doctor has opined that the head injury could be caused by a single impact against a blunt object. From this learned counsel wants us to infer that this is not a case of murder and that the Trial Court has wrongly come to the conclusion that an offence punishable under Section 302 has been committed. ( 9 ) LEARNED counsel for the State submits that PW-7 is an eye-witness and can be relied upon to the effect that he saw Simmi assaulting the deceased and thereby causing him several injuries. ( 10 ) HAVING heard counsel for the parties and upon an analysis of the material available before us, we find substance in the submissions made by counsel for the appellant. There is material on record to show that Simmi in the past two or three years had been sleeping on the footpath, Verandah No. 39, netaji Subhash Marg, Darya Ganj, Delhi. There is evidence on record to show that Simmi had, in the very first instance, claimed that the deceased had tried to outrage her modesty and she in self-defence pushed the accused. There is evidence on record to show that the injuries suffered by the deceased could be result of a single impact on a blunt object. There is evidence on record to show that Simmi had, in the very first instance, claimed that the deceased had tried to outrage her modesty and she in self-defence pushed the accused. There is evidence on record to show that the injuries suffered by the deceased could be result of a single impact on a blunt object. There is also evidence on record to show that the tuft of the hair of Simmi were lying near the fist of the deceased. ( 11 ) FROM the above, it can safely be deduced that the condition under which the deceased tried to take advantage of Simmi was not appreciated by her and she resisted the same. There appears to have been some sort of force used by the deceased to subdue Simmi and as a result Simmi's hair were found on the ground close to the deceased. In such a situation, if Simmi had pushed the deceased who fell on the ground striking against the stone, which resulted in injuries to him, it cannot be said that this is a case of murder. Even otherwise, we find statement of PW-7, Ramesh Panwar, is highly exaggerated. He claims that Simmi was causing injuries to the deceased by using a big stone. This assertion of PW-7 does not appear to be correct, inasmuch as Simmi was admittedly shorter than the deceased and could not have caused injuries of the nature as have been described by the Doctor. The version that she was repeatedly assaulting him with a stone is not borne out from the medical evidence which shows that a single impact with a blunt object could have resulted in all the injuries while this witness testifies to repeated assaults. Strangely enough, the witness who states to have seen the assault did not raise an alarm but immediately joined others who were chasing Simmi. From this it appears that PW-7 was not an eye witness but was one of the persons who chased simmi after the alleged incident. The testimony appears to create a doubt that the witness is telling the truth, in which case no implicit reliance can be placed on the testimony of PW-7. He also appears to be just a chance and a convenient witness. There is no other eye-witness of the occurrence and the story put forth by the accused in defence appears to be more probable. He also appears to be just a chance and a convenient witness. There is no other eye-witness of the occurrence and the story put forth by the accused in defence appears to be more probable. ( 12 ) IN that view of the matter, we are of the opinion, that the trial Court has not evaluated the evidence on record in proper perspective. We, therefore, set aside the judgment and order dated 21. 09. 2006 and 05. 10. 2006. Criminal Appeal 969 of 2006 is allowed and disposed of. The appellant, Simmi, who is in jail shall be set at liberty forthwith unless wanted in any other case. Crl. M. B. 2026/2006 also stands disposed of.